Guest Post: Nic Suibhne on the Adoption Bill 2009

We are delighted to welcome this guest post from Brid Nic Suibhne on the Adoption Bill 2009. Brid is a researcher at the Law Reform Commission but this post is contributed in a personal capacity.

Adoption legislation in Ireland has been referred to an “incomprehensible jigsaw” encompassing seven pieces of legislation.[1]In 2003 the government announced a review of adoption law, to take account of the social and economic changes which had occurred since the principal act of 1952. Following an open consultation, the Adoption Bill was published in January 2009 and is moving through the various stages of the legislative process.[2]This recent attempt to clarify the law, by incorporating the previous adoption acts into one piece of legislation is much welcomed[3].

In relation to both domestic and intercountry adoption, section 19 of the Bill states that in any matter, application or proceeding before the Adoption Authority or any court, the welfare of the child is regarded as the first and paramount consideration. It is imperative that the child is at the centre of the adoption process and the emphasis is on providing a child with a suitable family, rather than providing a family with a child.

A key feature of the Bill is contained in section 9, which gives force of law to the Hague Convention on the Protection of Children and Co-operation in respect of Inter-Country Adoption 1993, again much welcomed and overdue. The Convention itself however is nearing its 16th birthday and would benefit from clarification and reform.One cannot assume that by giving legal effect to the Convention, Ireland’s adoption law will be perfected. The permanent bureau of the Convention recognised the need for reform and improvementat the meeting of the Special Commission on the practical operation of the Hague Convention in 2005.[4]A number of important recommendations were made, such as revision of the original text to include children with special needs.[5]

The importance of accurate reliable information was underlined and State Parties are recommended to submit statistics to the Permanent Bureau on an annual basis. The Commission recognised the importance of cooperation between receiving countries and countries of origin to ensure a better understanding of the needs of the child. The Commission also addressed the issue of undue pressure on countries of origin, which has been somewhat remedied by the Intercountry Adoption Technical Assistance Programme.[6] It is important that Ireland, as a country which has benefitted greatly from intercountry adoption in recent years, contributes to the Programme by way of funds and expertise.[7]

The Hague Convention does not cover every form of adoption[8] – but it does cover simple adoptions.An adoption order, as we know it in Ireland is both creative and destructive, as it creates a new parent – child relationship which destroys the existing one. This is called full adoption. A simple adoption does not completely sever the legal ties between a child and his or her biological family, although it does recognise the child’s new relationship with his or her adoptive parents. TheConvention works on the premise that all adoptions, simple or full, are recognised by operation of law in all contracting States. Section 57 of the Adoption Bill covers simple adoptions, previously covered by section 10 of theAdoption Act 1998. The 1998 Act likened simple adoption to guardianship, ensuring that adoptive parents would be treated as full legal guardians of the child. This was a considerable improvement to the 1991 Act, which did not acknowledge the disparity between both types of adoption, however the legal status of simple adoptions was not fully clarified by the 1998 Act[9]. Under the Adoption Bill, the adopted child is considered as the child of the adopted couple, born to them in lawful wedlock, although the child’s natural parents do not lose all parental rights and duties[10]. Section 69 allows for a simple adoption to be converted into a full adoption, in line with Article 27 of the Hague Convention. Article 27 of the Convention however is in need of reform and was raised at the meeting of the Special Commission in 2005. The Chair acknowledged the difficulty involved in recognising different types of adoption, particularly where states only practise one type of adoption, namely full adoption. The issue of using consent given for simple adoption as adequate consent for a full adoption was described as “problematic”[11].There has been a tendency for signatories, including Ireland, to judge the family law systems of other countries by domestic standards and insist on full adoption, a practice which raises questions over how informed consents are. It is imperative that where consent is given for the purposes of a simple adoption, all parties are aware, particularly those in the sending country, that such an adoption may be converted into a full adoption under Article 27 of the Hague Convention.

Looking at the issue of financial gain, section 145 of the Bill regulates the payments and donations permissible as part of the adoption process. The Bill states that accredited bodies can accept reasonable costs and expenses related to their functions including reasonable fees paid as remuneration for professional services. More detail would be helpful here, as at present the Bill refers to “reasonable costs and expenses” without any elaboration. Section 145 states that accredited bodies may only accept gifts of money with the prior approval of the Adoption Authority, in effect ensuring that all gifts are examined by the Authority, which should provide some additional clarity as to the kind of payments involved in the adoption process. It is often difficult to see through the description of a payment in order to determine what exactly the money is for and where it is going.At the meeting on the practical operation of the Hague Convention, the Special Commission addressed the need for transparency in costs, and repeated its earlier recommendations that donations by prospective adopters should not be sought, offered or made. Furthermore, information on costs should be publicly available, including an itemised statement of average costs and charges. A document of this sort published by the Adoption Authority would be very useful and greatly assist in the development of a standard and transparent table of costs.

The Bill also makes provision for Ireland to create bi-lateral agreements with countries that are not party to the Hague Convention. It is of the utmost importance that such agreements include rights and safeguards which are at a minimum, equal to those contained in the Hague Convention. Section 73 of the Bill states that where discussions take place in relation to forming bi-lateral agreements, the Adoption Authority shall have regard for the principles of the Hague Convention. In particular, Article 4 of the Hague Convention must be satisfied, which states that an adoption can only take place if the child is adoptable, intercountry adoption is in the child’s best interests and the necessary consents have been obtained. The issue of bi-lateral agreements has dominated much of the attention given to the Bill, due to the fact that several of the sending countries where Irish people have adopted from are not party to the Hague Convention[12]. The issue of adopting children from Vietnam in particular has sparked considerable debate and concern over the process of intercountry adoption[13]. The agreement in place with Vietnam expired on the 1st May 2009. It is unfortunate that the government had not foreseen the problems which would arise when the agreement expired, namely that Irish adopters are effectively waiting in limbo, uncertain of the status of their applications. Negotiations to reach a new agreement are ongoing and one hopes that an agreement will be reached shortly. It is important, however, that the agreement reached is one which places the rights of the child at the centre of the process.

Broadly speaking, international law can often seem like a tangled web of different systems and regulations, messy and unorganised. This is particularly so when international law deals with such personal and private aspects of life such as the family, children’s rights, identity, culture and so on. Intercountry adoption treads on a lot of nerves precisely because it deals with highly emotive and controversial issues that have never been resolved. Issues of colonialism, racism and globalisation are at the heart of the intercountry adoption debate, intertwined with personal and group rights of identity and culture. Difficult as it may be to address such issues,flaws and inconsistencies are not excusable.Adoption is a state regulated institution and countries should be held responsible for violations of children’s rights caused by shortcomings in their adoption laws.

[5]One hopes that amendments made to the Convention will be implemented in a timely fashion, considering the length of time it has taken to legislate to give the Convention full force of law here in Ireland. A delay in the implementation of future amendments would undermine the current intention to improve the Irish adoption system.

[6] The Programme aims at providing assistance and training to contracting states.